¶1.Peter
Sherner (Sherner) appeals from the order of the Thirteenth Judicial
District Court, Yellowstone County, granting Respondent Conoco, Inc.
(Conoco) summary judgment. We reverse and remand.

¶2.The
two issues on appeal are:

I What standard should
be used to determine whether an employer’s act or omission is "intentional
and malicious," thereby allowing an injured worker to bring a
tort action against his employer under § 39-71-413, MCA?

II Whether it was error
for the District Court to grant summary judgment in favor of Conoco.

FACTUAL BACKGROUND

¶3.In 1995,
Sherner was an employee at the Conoco Refinery in Billings, Montana.
On August 7, a leak was discovered ina nozzle of the Fluidized Catalytic
Cracker (FCC) Unit. The FCC Unit makes gasoline and light cycle oil
which is processed into diesel fuel. John Gott, a member of Conoco management,
elected to repair the nozzle leak and at the same time, performwork
inside one of the FCC vessels known as W-58. In order to bring the FCC
Unit down for repair, the refinery operationscrew must follow a complex
and detailed shutdown procedure. Part of this procedure involves isolating
the FCC Unit from other units of the Refinery which are not going to
be repaired. The FCC Unit is then steamed out in order to remove hazardous
gasses.

¶4.Once
the operations crew completes this procedure, the FCC Unit is turned
over to a "blind" foreman who establishes that valves are
closed and checks for the existence of gas using a sensor. The blind
foreman may then authorize workers tobegin the process of "blinding"
the FCC Unit. Blinding involves inserting flat metal plates into openings
in the pipes to ensure that gas such as hydrogen sulfide (H2S) does
not move through the pipes to the FCC Unit. Breathing H2S gas results
inpoisoning and even in very low concentrations causes headaches and
nausea.

¶5.Two
known sources of H2S are connected to the FCC Unit; the gas recovery
plant (GRP), and a desulferizer known as HDS #1. The GRP was idled but
not depressurized during the August 1995 shutdown and repair and the
HDS #1 was still operating under pressure. The tendency in such a situation
is for gas under pressure in a closed space to move toward an area with
less pressure, i.e., from the pressurized GRP Unit and the HDS #1 through
the pipes to the non-pressurized FCC Unit.

¶6.According
to Conoco rules no work, including blinding, could begin until the blind
foreman signed a work authorization permit. It is also the blind foreman’s
responsibility to walk through the Unit to check valves and test for
the presence of gas. Blind foreman Wayne Lipp (Lipp), tested the overhead
line on W-58 and found it free of H2S. According to Conoco policy, blinding
was to begin within one hour after the work permit was issued, however
in this case it did not. Around this time, Gott and other managers smelled
a sour gas odor in the vicinity of W-58. Management did not stop work
on the shutdown as a result of this odor.

¶7.Approximately
2 hours after Lipp performed the gas sniff test at the top of W-58,
he signed a work authorization permit allowing workers to begin installing
blinds. Lipp assigned Sherner and another worker to install the blind
on the overhead line leading to the W-58 tower (a vessel which is part
of the FCC Unit). Sherner was exposed to H2S gas while he was installing
the blind and was seriously injured. Conoco’s investigation found that
a valve on a line from the HDS #1 did not seal, allowing H2S gas to
flow through the overhead line to where Sherner was working. An OSHA
investigation resulted in a number of citations being issued against
Conoco for violating OSHA regulations.

¶8.Sherner
alleged that Conoco and its employees were liable for his injuries by
reason of their intentional and malicious acts and/or omissions. Sherner
also alleged that Conoco’s parent company E.I. Du Pont De Nemours and
Company (Du Pont) was liable for his injuries by reason of its negligence.
Sherner’s wife, Debra, also joined in the case seeking to recover for
her loss of consortium by reason of the injury to her husband. All four
defendants in the case moved for summary judgment. The District Court
granted the motions in full and entered judgment in the Defendants’
favor. It is from the judgment in favor of Conoco that Sherner appeals.

STANDARD OF REVIEW

¶9.Summary
judgment is an extreme remedy which should not be a substitute for a
trial on the merits if a material factual controversy exists. Montana
Metal Buildings, Inc. v. Shapiro (1997), 283 Mont. 471, 474, 942 P.2d
694, 696. Moreover, all reasonable inferences which can be drawn from
the evidence presented should be drawn in favor of the nonmoving party.
Montana Metal Buildings, 283 Mont. at 474, 942 P.2d at 696.

¶10.Our
standard of review on appeal from summary judgment rulings is de novo.
See Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995),
274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994),
264 Mont. 465, 470, 872 P.2d 782, 785. When we review a district court's
grant of summary judgment, we apply the same evaluation as the district
court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995),
272 Mont. 261, 264, 900 P.2d 901, 903. The movant must demonstrate that
no genuine issues of material fact exist. Once this has been accomplished,
the burden then shifts to the non_moving party to prove, by more than
mere denial and speculation, that a genuine issue does exist. Bruner,
272 Mont. at 264, 900 P.2d at 903. Having determined that genuine issues
of fact do not exist, the court must then determine whether the moving
party is entitled to judgment as a matter of law. We review the legal
determinations made by a district court as to whether the court erred.
Bruner, 272 Mont. at 264_65, 900 P.2d at 903.

¶11.What
standard should be used to determine whether an employer’s act or omission
is "intentional and malicious," thereby allowing an injured
worker to bring a tort action against his employer under § 39-71-413,
MCA?

¶12.Sherner
claims that the District Court erred when it ruled that his tort claim
against Conoco was barred by the exclusive remedy provision of §
39-71-411, MCA. The District Court, citing our decision in Calcaterra
v. Montana Resources, 1998 MT 187, ¶ 14, 289 Mont. 424, ¶
14, 962 P.2d 590, ¶ 14, concluded that the law required Sherner
to "allege and establish that the employer had actual knowledge
that the employee was being harmed" in order to prove that the
acts were malicious (emphasis original). The District Court then found
that the facts were "insufficient to raise a genuine issue of material
fact that Conoco directed intentional harm" at Sherner.

¶13.Sherner,
however, contends that the District Court erred by applying the wrong
standard to the facts of his case. He insists that when looking at the
plain language of § 39-71-413, MCA, the facts, viewed in the light
most favorable to him, with all reasonable inferences drawn in his favor,
show that Conoco intentionally committed certain acts or omissions with
malice which resulted in his injury. Sherner alleges that the facts
surrounding the shutdown and accident showed that "acts and omissions
were done intentionally in order to minimize shutdown time and the resulting
financial losses." He further asserts that contrary to the District
Court’s finding, the plain language of § 39-71-413, MCA, does not
require an injured worker prove an employer intentionally harmed him
but only that he prove the act or omission which caused the injury was
intentional and malicious. Sherner insists that if we apply the appropriate
standard for an "intentional and malicious act or omission"
it is clear that he is entitled to present his claim to a jury.

¶14.Sherner
bases his argument on the allegation that this Court’s interpretations
of the phrase "intentional and malicious act or omission"
have been inconsistent and require clarification. He contends that we
should reverse those cases in which we have held that a worker must
show an intent to harm/injure on the part of the employer as outdated
and inconsistent with the legislative mandate embodied in § 39-71-413,
MCA. Sherner claims such inconsistencies have arisen because this Court
has not followed rules of statutory construction and recognized the
impact of the 1973 statutory changes in the Act on then-existing case
law.

¶15.Conoco
responds that Sherner is precluded from arguing that this Court should
adopt a new standard for determining whether an employer’s act or omission
is "intentional and malicious," because he failed to ask the
District Court to apply a legal standard other than that already in
existence. Sherner, however, insists that he did in fact preserve this
issue for appeal by stating in his Brief in Opposition to Conoco’s Motion
for Summary Judgment; "evidence that an employer knew its acts
created a high degree of harm to an employee or class of employees is
sufficient to meet the intentional act requirement of § 39-71-413,
MCA." Setting out the full definition of malice provided at §
1-1-204(3), MCA, Sherner stated, "[m]alice isimplied where intentional
acts are committed without justifiable excuse, privilege or defense.
. . [and] can be found where the acts are intentional even though the
consequences are not. . . ." We conclude that Sherner sufficiently
raised in District Court the issue of the proper standard for determining
whether an employer’s act or omission is "intentional and malicious,"
under § 39-71-413, MCA, to allow this Court to address this issue
on appeal.

¶16.It
is Conoco’s assertion that even if we address Sherner’s argument on
appeal, we should not overrule our prior precedent. It contends Sherner’s
request for this Court to reexamine our prior case law, and reverse
Great Western Sugar Co. v. District Court (1980), 188 Mont. 1, 610 P.2d
717, and its progeny, is unnecessary because we have already overruled
part of Great Western Sugar Co. and have recently clarified and refined
its principles in Schmidt v. State (1997), 286 Mont. 98, 951 P.2d 23,
and Calcaterra.

DISCUSSION

¶17.We
begin our discussion by providing some background on the Workers’ Compensation
Act. The purpose of the Act is to protect both the employer and the
employee by incorporating a quid pro quo for negligent acts by the employer.
The employer is given immunity from suit by an employee who is injured
on the job in return for relinquishing his common law defenses. The
employee is assured of compensation for his injuries, but foregoes legal
recourse against his employer. See Sitzman v. Schumaker (1986), 221
Mont. 304, 307-08, 718 P.2d 657, 659.

¶18.The
concept that the Act is the exclusive remedy for an employee who is
injured or killed in the scope of his or her employment has its origin
in Article II, Section 16 of the Montana Constitution, which provides;

[c]ourts of
justice shall be open to every person, and speedy remedy afforded for
every injury of person, property, or character. No person shall be deprived
of this full legal redress for injury incurred in employment for which
another person may be liable except as to fellow employees and his immediate
employer who hired him if such immediate employer provides coverage
under the Workmen's Compensation Laws of this state.

Art. II, Sec.
16, Mont. Const.

¶19.This
constitutional provision is implemented through § 39_71_411, MCA,
which provides generally that the Act is the exclusive remedy for injury
to or death of an employee covered by the Act.

[A]n employer
is not subject to any liability whatever for the death of or personal
injury to an employee covered by the Workers’ Compensation Act or for
any claims for contribution or indemnity asserted by a third person
from whom damages are sought on account of such injuries or death.

Section 39-71-411,
MCA.

¶20.In
Enberg v. Anaconda Co. (1971), 158 Mont. 135, 489 P.2d 1036, we addressed
the exclusive remedy rule, holding that where plaintiff’s complaint
did not allege intentional injury by the defendant employer, any claim
for relief was barred by the exclusive remedy provisions of the Workers'
Compensation statute. Enberg, 158 Mont. at 137-38, 489 P.2d at 1037.
After our holding in Enberg, the Montana Legislature repealed 92-204,
RCM 1947 and enacted 92-204.1 RCM 1947, making a significant change
by providing that a worker could sue a fellow employee if the worker’s
injuries were caused by the "intentional and malicious act or omission"
of a co-worker. 92-204.1 RCM 1947 (today codified at § 39-71-413,
MCA). Section 413's exclusive remedy exception provides;

[i]f an employee
receives an injury while performing the duties of his employment and
the injury or injuries so received by theemployee are caused by the
intentional and malicious act or omission of a servant or employee of
his employer, then the employee or in case of his death his heirs or
personal representatives shall, in addition to the right to receive
compensation under the Workers’ Compensation Act, have a right to prosecute
any cause of action he may have for damages against theservants or employees
of his employer causing the injury.

Section 39-71-413,
MCA, (emphasis added).

¶21.Despite
this legislative change, we held that where a complaint fell short of
alleging an intentional tort, it did not state a claim that would override
the exclusivity provision of the statute. Great Western Sugar Co., 188
Mont. at 6, 610 P.2d at 719. It is in that holding Sherner alleges this
Court erred by focusing not on the "intentional act or omission"
as provided in § 413, but on the harm which results from the intentional
act. We stated:

the "intentional
harm" which removes an employer from the protection of the exclusivity
clause of the Workers’ Compensation Act is such harm as it maliciously
and specifically directed at an employee, or class of employee out of
which such specific intentional harm the employee receives injuries
as a proximate result.

¶22.Sherner
claims that such a holding and its progeny are improper because they
are based upon our holding in Enberg, issued prior to the 1973 Legislature’s
change in the Act which gave workers an exception to the exclusive remedy
clause in § 39-71-411, MCA. Sherner suggests that holding has resulted
in inconsistencies in this Court’s interpretation of "intentional
and malicious act or omission" which have occurred ever since by
continuing to follow pre-1973 case law interpreting the Act as it existed
at that time and by failing to recognize the significant statutory change
made in 1973 by the Montana Legislature. The outcome, Sherner argues,
is that the current requirements place a higher burden on an injured
worker than the plain language of § 39-71-413, MCA, requires. Sherner
insists that on its face, the plain language of § 39-71-413, MCA,
only requires a worker to show that the act or omission which caused
his injury was "an intentional and malicious" act or omission.
Today Sherner urges this Court to correct past inconsistencies and remedy
this alleged oversight by applying the "plain meaning" of
"intent" and "malice" to the application of §
39-71-413, MCA.

¶24.Only
three years after Great Western Sugar Co., this Court ruled that Enberg
and Great Western Sugar Co. did not turn on the distinction between
intentional act and intentional injury, stating "malice can be
found where acts are intentional though the consequences are not."
Strainer, 204 Mont. at 168, 663 P.2d at 341. In Strainer, a worker was
allegedly injured when he was the object of a practical joke played
by Strainer, who squirted toxic smoke into his co-worker’s respirator.
Strainer, 204 Mont. at 164, 663 P.2d at 339. We held that § 39-71-413,
MCA, permits the filing of a third party action where acts of an employee
are intentional, irrespective of whether the results of that act were
intended. Strainer, 204 Mont. at 168, 663 P.2d at 341-42 (emphasis added).

¶25.Additionally,
we noted that the definition of malice is more expansive than simply
intending the consequences of the act, pointing to definitions of malice
from Montana case law; "malice is a wish to vex, annoy or injure
another person, or an intent to do a wrongful act . . . [we have] also
implied malice where the intentional acts of a defendant were committed
without justifiable excuse, privilege, or defense." Strainer, 204
Mont. at 167-68, 663 P.2d at 341 (citing Cashin v. Northern Pac. R.
Co. (1934), 96 Mont. 92, 28 P.2d 862, Poeppel v. Fisher (1977), 175
Mont. 136, 572 P.2d 912).

¶26.Two
years after Strainer, we once again returned to focus on the intentional
harm element and without overruling Strainer, upheld our earlier conclusion
in Great Western Sugar Co. in Noonan. Noonan alleged that the facts
in his case showed an intent on the part of his employer to injure him.
Reviewing those facts, we stated

[w]e . . .
fail to discern how any of the specific facts could be interpreted to
mean harm was specifically directed at Noonan. The facts do establish
that the owners of Spring Creek operated a hazardous and dangerous workplace
. . . [h]owever, to translate this situation into an inference of tortious
intent on behalf of the employer would require a standard of law that
this Court has thus far refused to adopt.

Noonan, 216
Mont. at 225, 700 P.2d at 625.

¶27.However,
the writer of this opinion dissented:

"[t]he
‘intentional harm’ we talked about in the Great Western Sugar Co. case
. . . does not, of course, refer to any degrees of negligent conduct.
Nor does it imply such conduct must go so far as to constitute conduct
similar to that of assault. A specific intent to cause harm is not necessary."
Noonan, 216 Mont. at 230-31, 700 P.2d at 629 (Hunt, J. dissenting).

¶28.We
again relied on the intentional harm standard in Blythe, determining
that the appellant had not met the standard set forth in Great Western
Sugar Co. and Noonan, which required that he show intentional harm maliciously
and specifically directed at him by his employer. Blythe, 262 Mont.
at 469, 866 P.2d at 221. Blythe had demonstrated only that his employer
knew of the defective and hazardous character of a medical device which
Blythe and other employees were required to use. We concluded that he
did not state a cause of action which would remove his employer from
the protection of the exclusive remedy clause of the Act. Blythe, 262
Mont. at 470, 866 P.2d at 222.

¶29.In
an attempt to show the facts of his case should fall outside the protection
of the exclusive remedy clause, Blythe presented an argument not previously
considered by this Court concerning the meaning of "malice."
He contended that the definition of "actual malice" in §
27-1-221(2), MCA (applied to the Act through § 1-2-107, MCA) superceded
the GreatWestern Sugar Co. "intentional harm" standard. We
noted that a case on exclusivity had not been reviewed since §
27-1-221(2) was enacted but that the term "maliciously"as
used in Great Western Sugar Co., "has a well-known meaning in Montana."
Blythe, 262 Mont. at 473, 866 P.2d at 224. We pointed out that §
1-1-204(3), MCA, defines "malice" and "maliciously"
as "denot[ing] a wish to vex, annoy, or injure another person .
. . ," but left off the remainder of the definition "or an
intent to do a wrongful act, established either by proof or presumption
of law." Blythe, 262 Mont. at 473, 866 P.2d at 224; § 1-1-204(3).

¶30.Sherner
asserts that this Court erred in its application of only the first portion
of the definition of malice provided in §1-1-204(3), MCA, and like
Blythe, urges us to adopt the § 27-1-221(2), MCA, definition as
the most appropriate definition of malice for use in § 39-71-413,
MCA. Section 27-1-221(2), MCA, provides:

[a] defendant
is guilty of actual malice if the defendant has knowledge of facts or
intentionally disregards facts that create a high probability of injury
to the plaintiff and: (a) deliberately proceeds to act in conscious
or intentional disregard of the high probability of injury to the plaintiff;
or (b) deliberately proceeds to act with indifference to the high probability
of injury to the plaintiff.

Section 27-1-221(2),
MCA.

¶31.Taking
an approach similar to that of Sherner’s argument, the appellant in
Schmidt argued that the plain language of § 39-71-413, MCA, required
only that she prove that an employee acted intentionally and maliciously
and that the requirement was satisfied by proving her husband was ordered
to work under conditions which his employer or supervisor knew created
a high probability that he would be injured. Schmidt, 286 Mont. at 101,
951 P.2d at 25. She argued that our decisions in Great Western Sugar
Co. and Noonan misapplied the plain language of § 39-71-413, MCA,
and should not be followed.

¶32.Focusing
on the nature of the act, as we had in Strainer, we held that the appellant
had not established an intentional act with malice which caused injuries
to her husband, regardless of whether we applied the definition of malice
at § 1-1-204(3), MCA, or § 27-1-221(2), MCA. Schmidt, 286
Mont. at 105, 951 P.2d at 28. In acknowledgment of the inconsistencies
in the application of the "intentional and malicious act or omission"
standard, we stated:

[w]ithout
attempting to reconcile the inconsistencies in our prior decisions,
and to further reconcile those decisions with the plain language of
§ 39-71-413, MCA, we reaffirm our commitment to at least that part
of our decision in Great Western Sugar Co. which held that allegations
of negligence, no matter how wanton, are insufficient to avoid the exclusive
remedy of the Workers’ Compensation Act.

Schmidt, 286
Mont. at 105, 951 P.2d at 28.

¶33.After
years of fluctuating between focusing either on the intentional act,
or intentional harm, we recently applied a combination of those two
standards in Calcaterra. The appellant argued that the evidence raised
genuine issues of material fact that Montana Resources acted with malice
and an intent to harm her husband. Calcaterra, ¶ 15. Citing Lockwood,
a case focusing on "harm," we stated:

[w]e have
held that allegations or evidence that an employer knew its acts created
a high degree of harm to an employee are sufficient to meet the intentional
act requirement of 39-71-413, MCA. Under [this] approach, however an
employee must allege and establish that the employer had actual knowledge
that the employee was being harmed; allegations . . . that an employer
"had ample reason to know" of the harm being experienced are
insufficient.

Calcaterra,
¶ 14.

¶34.We
held that "Montana Resources’ knowledge that an employee working
10 feet above the floor on an unsecured ladder without a safety belt
and lanyard was risking injury is insufficient to raise a genuine issue
of material fact that Montana Resources directed intentional harm at
[the employee]." Calcaterra, ¶ 18 (emphasis added). However,
in concluding, we stated that there was no "intentional and malicious
act . . . which caused [the employee’s] injuries and death." Calcaterra,
¶ 20.

¶35.Today,
Sherner urges this Court that the case law as a whole does not reflect
the statutory language of § 39-71-413, MCA. In response to that
claim, we now examine that statute’s plain language to determine a standard
by which to judge when an act or omission is intentional and malicious.
In an effort to construe the statue, this Court must attempt to "ascertain
and declare what is in terms or in substance contained therein, not
to insert what has been omitted or to omit what has been inserted."
Section 1-2-101, MCA. The rules of statutory construction require the
language of a statute to be construed according to the plain meaning
of the words used. McClure v. State Compensation Mut. Ins. Fund (1995),
272 Mont. 94, 98, 899 P.2d 1093, 1096. If the language is clear and
unambiguous, then no further interpretation is required. Stratemeyer
v. Lincoln County (1996), 276 Mont. 67, 73, 915 P.2d 175, 178.

¶36.We
first must determine what the Legislature meant when using the word
"intentional" in the Act. Because "intentional"
is not defined in the Act and the term does not require a technical
definition, we construe it according to its plain meaning."Intentional"
is defined as "1. done deliberately; intended. 2. having to do
with intention." The American Heritage Dictionary of the English
Language, Third Edition, 1996.

¶37.While
"malicious" is not defined in the Act and has no technical
definition, it is defined in two places in the code; §§ 1-1-204(3),
MCA, and § 27-1-221(2), MCA. As Sherner points out, our prior case
law has resulted in inconsistencies in the definition of malice. Sherner
suggests that this Court should adopt the definition of "actual
malice" as provided in § 27-2-221(2), MCA. We agree. We conclude
that rather than attempting to weave together a patchwork of inconsistent
definitions from earlier case law, the appropriate definition of "malice"
for use in § 39-71-413, MCA, is that found in § 27-1-221(2),
MCA; [a] defendant is guilty of actual malice if the defendant has knowledge
of facts or intentionally disregards facts that create a high probability
of injury to the plaintiff and: (a) deliberately proceeds to act in
conscious or intentional disregard of the high probability of injury
to the plaintiff; or (b) deliberately proceeds to act with indifference
to the high probability of injury to the plaintiff. Section 27-1-221(2),
MCA.

¶38.The
term "act" is not defined in the Act and has no technical
definition. Therefore, it may also be construed according to its plain
meaning. "Act" is "the process of doing or performing
something." The American Heritage Dictionary of theEnglish Language,
Third Edition, 1996. Finally, the term "omission" may similarly
be construed according to its plain meaning; "1. the act or an
instance of omitting; 2. the state of having been omitted; 3. something
omitted or neglected." The American Heritage Dictionary of the
English Language, Third Edition, 1996.

¶39.Conoco
responds that if we apply the plain language doctrine to the statute,
then the exception to the exclusive remedy rule would not apply to this
case at all because it only refers to causes of action against fellow
employees. However, we have held that while the language of § 39-71-413,
MCA, provides for a cause of action only against a fellow employee or
other servant of the employer who intentionally and maliciously injures
an employee, such an action may be brought against the employer as well.
Sitzman, 221 Mont. at 307-08, 718 P.2d at 659. To fail to hold employers
liable in the same manner as their employees by permitting an employer
to commit an intentional and malicious act or omission that causes an
injury to an employee, and then allowing him to hide behind the exclusivity
provision of the Act, would defeat the purpose of the Act.

¶40.Whether
it was error for the District Court to grant summary judgment in favor
of Conoco.

¶41.Consistent
with our holding above, and with the new standard set forth herein applying
the plain language of the statute and the definition of "actual
malice" found in § 27-2-221(2), MCA, we conclude that there
are genuine issues of material fact in the present case, and therefore,
summary judgment is not appropriate.

¶42.The
Judgment of the District Court dismissing Sherner’s complaint against
Conoco based upon the award of summary judgment in favor of Conoco is
vacated. The claims against Conoco are remanded to the District Court
for trial upon the merits and application of the plain meaning of "intentional
and malicious act or omission" as set forth in this opinion.

¶43.Reversed
and remanded.

/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

/S/ JAMES C. NELSON

Justice James C. Nelson specially
concurs:

¶44.I write
separately as to the point of law discussed in ¶ 39 of our opinion
because I believe that it is important to articulatewhat, I understand,
is the underlying rationale and independent jurisprudential basis for
our decision on this matter.

¶45.Conoco
correctly states that reading the plain language of § 39-71-413,
MCA, the "intentional tort" exception onlyapplies to suits
against the injured worker's co-employee. Notwithstanding, as our opinion
points out, we held in Sitzman v. Schumaker (1986), 221 Mont. 304, 718
P.2d 657, that suit could also be brought against the employer. Sitzman,
221 Mont. at 307, 718 P.2d at 659.

¶46.Our
holding in Sitzman flowed as the natural consequence of our decision
in Enberg v. Anaconda Co. (1971), 158 Mont. 135, 489 P.2d 1036. In Enberg
we created a common law exception to the exclusive remedy rule for workers
injuredby the intentional acts of their employers. Enberg, 158 Mont.
at 137, 489 P.2d at 1037. In 1973, the legislature enacted § 92-204.1,
RCM (1947) (the predecessor to § 39-71-413, MCA). This statute
created the statutory exception to the exclusive remedy rule for intentional
acts and omissions by co-employees. Thus, after 1973, the exception
applied to employers via the common law and Enberg, and to co-employees
via the statute. Importantly, both standards were the same.

¶47.For
this reason, Sitzman, decided in 1986, did not create a new common law
exception to exclusivity; it merely applied "in a similar manner"
the rationale of the exception that had already been created in Enberg.
As this Court did in Enberg, theSitzman Court focused on the purpose
of the Act and concluded that to give the employer immunity for intentional
torts would effectively destroy the quid pro quo; grant the employer
the right to assault his employees and then hide behind exclusivity;
force other employers to subsidize this wrongful conduct; allow the
offending employer to benefit from his own wrongdoing;and, thus, defeat
the purposes of the Act. Sitzman, 221 Mont. at 307-08, 718 P.2d at 659.

¶48.Furthermore,
there are good reasons why the exception for intentional and malicious
acts and omissions must apply in the same fashion to employers and co-employees
alike. In Madison v. Pierce (1970), 156 Mont. 209, 478 P.2d 860, we
interpreted § 92-204, RCM (1947), which granted employers immunity
from common law and statutory negligence actions brought by the injured
employee, but allowed third party actions against persons or corporations
other than the employer. Madison, 156 Mont. at 212, 478 P.2d at 862.
In Madison, the injured worker was receiving compensation under the
Act, but then attempted to sue various corporate officers of her employer,
and her foreman. Madison, 156 Mont. at 210-11, 478 P.2d at 861-62. The
question was whether the statute's explicit grant of immunity to the
employer also encompassed a grant of immunity to co-employees--here
executive and management personnel. Madison, 156 Mont. at 213, 478 P.2d
at 862-63. We held that it did. Madison, 156 Mont. at 219, 478 P.2d
at 866.

¶49.Again,
we looked to the purpose of the Act. We stated:

The broad
purpose of the Montana Workmen's Compensation Act is to substitute a
system for the payment of medical costs and wage losses to injured employees
without regard to fault, for the common law system of legal action by
the injured employee against the one whose negligence proximately caused
his injury.

Madison, 156
Mont. at 213, 478 P.2d at 863. We then went on to explain:

The principle
behind this legislation was that the business enterprise or industry
should directly bear the costs of injury to its employees in the same
manner as the enterprise has always borne the costs of maintaining and
repairing its plant, machinery and equipment. The business enterprise
should pass along the costs of maintenance and repair of its human resources,
its employees, in the same manner as is done in the case of other production
costs, namely in the price at which its product is sold to the public.
This underlying purpose finds summary expression in the familiar phrase
"the cost of the product should bear the blood of the workman[.]"

Madison, 156
Mont. at 213-14, 478 P.2d at 863. Thus, the foundation for the Act is
the principle of "enterprise liability"--that is, recognition
that the costs of compensating injured workers are, like other production
expenses, simply a costof doing business to be passed on to the public
in the price of the product.

¶50.Recognizing
this fundamental principle, we then acknowledged the corollary that:

If section
92-204 were construed to withhold immunity to a co-employee from a negligence
action, the cost of injury to an employee of the business would be shifted
from the employer, where the Act places it, to a fellow employee, where
the Act does not place it. It also would defeat the ultimate payment
of injury cost by the public purchasing the product.

Madison, 156
Mont. at 215, 478 P.2d at 864.

Since the
employee's acts are the acts of his corporate employer for the purpose
of establishing the employer's liability, they are equally so for the
purpose of establishing the employee's liability. Liberal construction
of the Act in favor of the injured workman does not compel us to ignore
the equal rights of his fellow employees, specifically that the employer
of a given business enterprise shoulder the costs of injury to his employees
without recourse to contribution from coemployees.

Madison, 156
Mont. at 217, 478 P.2d at 865.

Montana's
Act is founded on the principle of enterprise liability and enterprise
immunity. Therefore the contractual liability of the employer and the
immunity of the coemployee in tort coexist; the coemployee is a member
of the enterprise and not a stranger to the Act; that injury costs are
not subject to being shifted around among the members of the enterprise,
i.e. employer, employee, and coemployee, but remain solely the obligation
of the employer; . . .

Madison, 156
Mont. at 219, 478 P.2d at 866.

¶51.Having
thus determined that the Act was founded on the principles of enterprise
liability, we then held that the immunity afforded by § 92-204,
RCM (1947), extended to co-employees acting in furtherance of the employers’
business. Madison, 156 Mont. at 219, 478 P.2d at 866. And, as already
noted above, § 92-204.1, RCM (1947), enacted by the legislature
in 1973, effectively codified Madison.

¶52.Returning
to the case at bar, this same principle of "enterprise liability"
dictates why Conoco's argument that the "intentional tort"
exception only applies to suits against the injured worker's co-employee
must fail. "[I]njury costs are not subject to being shifted around
among the members of the enterprise, i.e., employer, employee, and co-employee,
but remain solely the obligation of the employer." Madison, 156
Mont. at 219, 478 P.2d at 866. Were the intentional tort exception standards
different as to employers and employees, then liability for an intentional
and malicious act or omission committed by a co-employee at the direction
of the employer and in furtherance of the employer's enterprise, would
be shifted from the employer to the co-employee--contrary to the doctrine
of enterprise liability, the foundation principle of the Act.

¶53.Accordingly,
there is a well-established and independent jurisprudential basis for
holding that the intentional tort exception to exclusivity applies to
employers. That basis derives from the common law and the doctrine of
enterprise liability.

¶54.I concur.

/S/ JAMES C. NELSON

Justice W. William Leaphart
concurs in the foregoing special concurrence.

/S/ W. WILLIAM LEAPHART

Justice Karla M. Gray, dissenting
.

¶55.I respectfully
dissent from the Court's opinion, which adopts entirely new standards
for determining whether the exception to the exclusive remedy provision
contained in § 39-71-413, MCA, applies and also adopts the §
27-1-221, MCA, definition of malice. Based on the procedural posture
in which this case presents itself, I would do neither and would affirm
the District Court.

¶56.Our
general rule is that we will not address either an issue raised for
the first time on appeal or a party's change in legal theory. See Day
v. Payne (1996), 280 Mont. 273, 276, 929 P.2d 864, 866 (citations omitted).
The rationale underlying this rule of judicial restraint is that "it
is fundamentally unfair to fault the trial court for failing to rule
correctly on an issue it was never given the opportunity to consider."
See Day, 280 Mont. at 277, 929 P.2d at 866 (citation omitted). I would
apply these long-standing rules in the present case and conclude that
Sherner waived the right to argue both the "plain meaning"
of § 39-71-413, MCA, and adoption of the § 27-1-221, MCA,
definition of malice--the very matters on which the Court decidesthis
case--by failing to do so in the District Court.

¶57.Conoco
moved for summary judgment in the District Court pursuant to this Court's
cases interpreting § 39-71-413, MCA, and applying the § 1-1-204(3),
MCA, definition of malice. The portion of Sherner's brief in opposition
to Conoco's motion which set forth the "substantive law pertaining
to actions against employers" was brief--only two pages--and to
the point.

¶58.With
regard to the exception contained in § 39-71-413, MCA, Sherner's
brief first quoted the statute and then observed that we have interpreted
that statute to allow an injured employee to bring an action against
the employer as well as against a co-employee. The remainder of his
argument under § 39-71-413, MCA, only one paragraph long, cited
to cases interpreting that statute, including Calcaterra, Schmidt, Lockwood
and Great Western Sugar. No argument was made, even implicitly, that
those cases were wrongly decided under §~39-71-413, MCA, or that
a "plain meaning" standard should apply.

¶59.The
portion of Sherner's brief regarding the substantive law applicable
to "malice" also was short. It stated, in its entirety:

Clearly, Sherner
was relying on the definition of malice contained in § 1-1-204(3),
MCA, and our cases interpreting that statutory definition. He did not
reference, much less urge adoption of, the definition of malice contained
in § 27-1-221, MCA, for which he contends on appeal.

¶60.I cannot
join the Court in allowing Sherner to totally repackage his case on
appeal by changing his legal theory and raising new legal arguments
and then resolving the case on the basis of those new arguments. This
approach undermines the proper role of the district courts and this
Court, and permits this Court to reverse trial courts on issues never
presented to them for initial decision making. I dissent.